Tag: Mitigation

On Remand, Fourth District Determines that Case Challenging SANDAG’s RTP Is Not Mooted by Later EIR and Resolves CEQA Issues on the Merits

On November 11, 2017, the Fourth District, Division One in Cleveland National Forest Foundation v. San Diego Association of Governments (2017) 17 Cal.App.5th 413 (Cleveland II), resolved the remaining issues on remand from California Supreme Court’s decision earlier this year.

SANDAG certified a programmatic EIR for its 2050 Regional Transportation Plan/Sustainable Communities Strategy in 2011. Petitioners challenged that EIR, alleging multiple deficiencies under CEQA, including the EIR’s analysis of greenhouse gas (GHG) impacts, mitigation measures, alternatives, and impacts to air quality and agricultural land. The Court of Appeal held that the EIR failed to comply with CEQA in all identified respects.  The Supreme Court granted review on the sole issue of whether SANDAG was required to use the GHG emission reduction goals in Governor Schwarzenegger’s Executive Order S-3-05 as a threshold of significance. Finding for SANDAG, the Court left all other issues to be resolved on remand.

First, the Court of Appeal ruled that the case was not moot, although the 2011 EIR had been superseded by a new EIR certified in 2015, because the 2011 version had never been decertified and thus could be relied upon. The court also found that petitioners did not forfeit arguments from their original cross-appeal by not seeking a ruling on them. And, even if failing to raise the arguments was a basis for forfeiture, the rule is not automatic, and the court has discretion to resolve important legal issues, including compliance with CEQA.

Second, the court reiterated the Supreme Court’s holding, that SANDAG’s choice of GHG thresholds of significance was adequate for this EIR, but may not be sufficient going forward. Turning to SANDAG’s selection of GHG mitigation measures, the court found that SANDAG’s analysis was not supported by substantial evidence, because the measures selected were either ineffective (“assuring little to no concrete steps toward emissions reductions”) or infeasible and thus “illusory.”

Third, also under the substantial evidence standard of review, the court determined that the EIR failed to describe a reasonable range of alternatives that would plan for the region’s transportation needs, while lessening the plan’s impacts to climate change. The EIR was deficient because none of the alternatives would have reduced regional vehicles miles traveled (VMT). This deficiency was particularly inexplicable given that SANDAG’s Climate Action Strategy expressly calls for VMT reduction. The measures, policies, and strategies in the Climate Action Strategy could have formed an acceptable basis for identifying project alternatives in this EIR.

Fourth, the EIR’s description of the environmental baseline, description of adverse health impacts, and analysis of mitigation measures for air quality, improperly deferred analysis from the programmatic EIR to later environmental review, and were not based on substantial evidence.  Despite acknowledging potential impacts from particulate matter and toxic air contaminants on sensitive receptors (children, the elderly, and certain communities), the EIR did not provide a “reasoned estimate” of pollutant levels or the location and population of sensitive receptors. The EIR’s discussion of the project’s adverse health impacts was impermissibly generalized. The court explained that a programmatic EIR improperly defers mitigation measures when it does not formulate them or fails to specify the performance criteria to be met in the later environmental review. Because this issue was at least partially moot given the court’s conclusions regarding defects in the EIR’s air quality analysis, the court simply concurred with the petitioners’ contention that all but one of EIR’s mitigation measures had been improperly deferred.

The court made two rulings regarding impacts to agricultural land. In finding for the petitioners, the court held that SANDAG impermissibly relied on a methodology with “known data gaps” to describe the agricultural baseline, as the database did not contain records of agricultural parcels of less than 10 acres nor was there any record of agricultural land that was taken out of production in the last twenty years.  This resulted in unreliable estimates of both the baseline and impacts. However, under de novo review, the court found that the petitioners had failed to exhaust their remedies as to impacts on small farms and the EIR’s assumption that land converted to rural residential zoning would remain farmland. While the petitioners’ comment letter generally discussed impacts to agriculture, it was not sufficiently specific so as to “fairly apprise” SANDAG of their concerns.

Justice Benke made a detailed dissent. Under Benke’s view, the superseded 2011 EIR is “most likely moot” and in any event, that determination should have been left to the trial court on remand. This conclusion is strengthened, when, as here, the remaining issues concern factual contentions. As a court of review, their record is insufficient to resolve those issues.

California Supreme Court Schedules Oral Argument in City of San Diego v. Board of Trustees of the California State University

On May 6, 2015, the Supreme Court scheduled oral argument to be heard at on Tuesday, May 26, 2015 for City of San Diego v. Board of Trustees of California State University, Case No. S199557. The case presents the following issue:

Does a state agency that may have an obligation to make “fair-share” payments for the mitigation of off-site impacts of a proposed project satisfy its duty to mitigate under CEQA by stating that it has sought funding from the Legislature to pay for such mitigation and that, if the requested funds are not appropriated, it may proceed with the project on the ground that mitigation is infeasible?

The City of San Diego case followed the Supreme Court decision in City of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341, where the Supreme Court held that while the Trustees had an obligation to request appropriation from the Legislature for voluntary mitigation payments, the power to mitigate the “project’s effects through voluntary payments is ultimately subject to legislative control; if the Legislature does not appropriate the money, the power does not exist.” In a later case, the First District Court of Appeal declined to extend City of Marina to require that the Trustees fund increased fire department services necessitated by campus expansion because in that case, the impact was determined to be less than significant. (City of Hayward v. Board of Trustees of California State University (2012) 207 Cal.App.4th 446, which we wrote about in an earlier post.) Review was granted for City of Hayward, but further action has been deferred pending disposition the issue in City of San Diego.

Fifth District Court of Appeal Rejects Claims that Active Adult Housing Project Conflicts with Fresno County’s General Plan, but Concludes EIR for the Project Failed to Provide Sufficient Detail Regarding Air Quality Impacts on Human Health

On May 27, 2014, the Fifth District Court of Appeal issued its decision in Sierra Club et al. v. County of Fresno et al. (Case No. F066798). The case involves the County of Fresno’s approval of the Friant Ranch project, a master-planned retirement community for “active adults” (age 55 and older) on an approximately 942-acre site in north central Fresno County.

In the trial court, petitioners Sierra Club, Revive the San Joaquin, and League of Women Voters of Fresno (collectively, the Sierra Club), argued that: (1) the Friant Ranch project was inconsistent with the county’s general plan policies regarding agricultural land use and traffic levels of service; (2) the EIR’s analysis of the project’s air quality impacts was inadequate; and (3) the EIR’s analysis of water quality impacts associated with the project’s wastewater treatment plant was inadequate. The trial court denied the Sierra Club’s petition for writ of mandate. The Sierra Club appealed.

On appeal, the Sierra Club argued that the general plan policy to “maintain agriculturally designated areas for agricultural use” prohibits the county from redesignating land designated as agriculture to other uses. Because the Friant Ranch project included a general plan amendment redesignating the project site from agriculture to residential and commercial designations, the Sierra Club argued the county’s approval of the project violated the agricultural policy. Respondent County of Fresno, and Real Party in Interest, Friant Ranch, LP, represented by RMM attorneys Jim Moose, Tiffany Wright, and Laura Harris, contended that the general plan does not require the county to maintain land currently designated agriculture in that designation in perpetuity. The court agreed that the general plan allows the county to amend land use designations. And, because the project site is no longer designated agriculture, the project is not inconsistent with the requirement to maintain agriculturally designated areas in agricultural use. The court also held that the Sierra Club had failed to exhaust its arguments concerning the county’s transportation policies.

The Sierra Club also argued that the EIR lacked sufficient detail about the amount and location of wastewater discharge from the project’s proposed wastewater treatment plant. Although the Sierra Club did not make this argument in the trial court (and therefore would ordinarily be deemed to have forfeited the argument), the Court of Appeal exercised its discretion to consider the argument because matters involving the disposal of wastewater affect the public interest and the argument raised a question of law. Although not directly stated, the Court of Appeal appeared to believe that CEQA requires detailed information regarding the water balance to be included in the project’s CEQA documents. The court explained that the fact that the county’s experts opined that sufficient storage was available was irrelevant because, according to the court, the existence of substantial evidence in the record does not mean that sufficient information was disclosed in the EIR. The court therefore undertook an exhaustive review of various statements in the EIR and its supporting appendices about the amount of wastewater anticipated to be generated by the project and the size of the storage pond. Based on this review, the court determined that sufficient information was included in the CEQA documents regarding the amount and location of wastewater disposal.

The Sierra Club further claimed that the EIR’s discussion of air quality impacts was inadequate because the EIR: (1) did not explain what it meant to exceed the thresholds of significance by tens of tons per year; and (2) provided no meaningful analysis of the adverse health effects that would be associated with the project’s estimated emissions, which were above the thresholds. Although the EIR disclosed the types of health impacts associated with unsafe levels of the pollutants, quantified the project’s emissions, and concluded that the project would exceed the thresholds of significance set by the local air district, which are based on standards necessary for public health, the court held that this was not enough.

The court concluded that although the EIR had identified the adverse health impacts that could result from the project’s effect on air quality, it did not sufficiently analyze this effect. For example, the information disclosed in the EIR did not enable the reader to determine whether the 100-plus tons per year of coarse particulate matter, reactive organic gases, and mono-nitrogen oxides would require people with respiratory difficulties to wear filtering devices when they go outdoors in the project area or nonattainment basin. Nor did the information provided in the EIR make it possible to know how many additional days the San Joaquin Valley Air Basin would be in nonattainment due to the project. The court noted that answers to these examples are not necessarily required in a revised EIR, but that the EIR must contain some analysis of the correlation between the project’s emissions and human health.

The court also concluded that the county’s mitigation measures adopted for the project’s significant and unavoidable operational air quality impacts violated CEQA because, in the court’s opinion, the mitigation measures were too vague and unenforceable. The court reasoned that the mitigation measures needed to be more specific about who would implement the measures, and when. As an example, the court noted that the mitigation measure that trees “shall be carefully selected and located” to protect buildings from energy consuming environmental conditions uses the passive voice to hide the identity of the actor—that is, the person or entity selecting and locating the trees.

The court also concluded that the mitigation measures were impermissibly deferred. Although the Sierra Club had not raised this argument in the trial court, the court decided to consider the issue because it raised an important issue of policy. The mitigation measures stated that the county and the San Joaquin Valley Air Pollution Control District may substitute different air pollution control measures that are “equally effective or superior” to those set forth in the EIR, as better technology becomes available. The court found that this possibility of substitution rendered the mitigation measures deferred because the contents of the substituted provisions are unknown at present. Therefore, the court looked to whether the mitigation measures contained adequate performance standards to determine what types of measures would be “equally effective or superior” and concluded that many did not. For example, one mitigation measure required nonresidential projects to have bike lockers, which the court held failed to specify any performance standard to determine how to substitute the measure for an equally or more effective measure.

Furthermore, the court held that the statement in the EIR that the mitigation measures would “substantially” reduce air quality impacts was not supported by a discussion in the EIR and therefore violated CEQA.

Lastly, the court rejected Sierra Club’s claim that the county had not responded in good faith to comments suggesting that the county consider off-site emission reduction programs, such as the air district’s “Voluntary Emission Reduction Agreement” program. The court found that the county’s response to such comments, which explained that VERAs are voluntary and would be considered in connection with future project approvals was reasoned and met an objective good faith standard.